Opinion
Miscellaneous Action 00-138M-01 (JMF)
July 24, 2000
MEMORANDUM ORDER
Robert A. Berman is an economist with the Department of the Interior. The Department of Justice is investigating his receipt of $383,600 from the Project on Government Oversight. He and other witnesses have testified before a congressional committee. During the investigation I issued a warrant for the search of his office. At the request of the government when it sought the search warrant, I ordered the affidavit supporting the search warrant application sealed. Purporting to rely on Fed.R.Crim.P. 41(e), Berman has now moved me to permit him access to that affidavit.
Fed.R.Crim.P. 41(e) contemplates two situations where a motion under this rule is appropriate. If an indictment has been returned, the motion is deemed by this rule to be a motion to suppress the property seized. In such a situation, access to the underlying affidavit seems essential to the movant's attacking the validity of the search made pursuant to a warrant. Without the affidavit, the movant would be left to throw punches in the dark. A general right to the affidavit seems to derive by simple logical necessity from the constitutional right to attack the search. In the Matter of the Search of North Plastics, Inc. 940 F. Supp. 229, 233 (D. Minn 1996); In re: Search Warrants Issued August 29, 1994, 889 F. Supp. 296, 299 (S.D.Ohio 1995). In this case, however, the defendant has not been indicted and cannot move to suppress until he is. In the Matter of the Search of Eye Care Physicians of America, 910 F. Supp. 414, 420 (N.D.Ill. 1996) (motion to suppress with potential concomitant right to see affidavit premature until indictment is returned).
The second situation occurs when there is no potential prosecution of the movant (or any one else) or the prosecution has ended. In such a situation, the validity of the means of securing the property is not at issue, only its continued possession by the government. Here, the government could only defeat the motion by showing a superior right to the property because it is, for example, contraband. That is certainly not the situation here; Berman is not seeking the return of anything.
Although Berman's reliance on Fed.R.Crim.P. 41(e) does not take him where he wants to go, there is a general recognition among the courts of a right of access to the affidavit filed in support of an application for a search warrant. This flows from the common law right of access to judicial records, which the Supreme Court presumed to exist as part of the common law tradition in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). Fed.R.Crim.P. 41(g) requires the affidavit, as "one of the papers" created "in connection with [the warrant]" to be filed with the Clerk. It is the practice of the Clerk of this Court to create a separate court file for each warrant, with accompanying affidavit, and to make these files available to the public, like any other court file. Implicitly conceding the validity of that practice and the legitimacy of public access, the government moved to seal the affidavit in this case. But for that motion, the affidavit would have been publicly accessible. To say that affidavits in support of search warrant are exempt from public access solely because they are affidavits for search warrants creates for them a curious and irrational exemption from the public access afforded every other document filed with the Court.
A much more satisfactory approach is to follow the Supreme Court's teaching in Nixon and determine access to such affidavits in accordance with the nature of the document and the circumstances surrounding its creation. That has been the approach of the federal courts which have balanced the right of public access against the interests in continued secrecy, which interests include the protection of the privacy of others and the profound governmental necessity to shield confidential sources of information and to conduct and complete fair and efficient investigations into criminal behavior. In the Matter of Eyecare Physicians of America, 100 F.3d 514, 517 (7th Cir. 1996); In the Matter of the Application and Affidavit for a Search Warrant, The Washington Post Co. v Hughes, 923 F.2d 324, 326-327 (4th Cir. 1991); Baltimore Sun Co. v. Goetz, 886 F.2d 60,65 (4th Cir. 1989);United States v. Central Real Property Located in Romulus, Wayne County, Michigan, 977 F. Supp. 833, 836 (E.D.Mich. 1997); In the Matter of Eyecare Physicians of America, 3101 North Harlem, 910 F. Supp. 414, 419 (N.D.Ill. 1996); In the Matter of the Search of Flower Aviation of Kansas, Inc., 789 F. Supp. 366, 368 (D.Kan. 1992); In re: Search Warrants Issued on May 21, 1987, No. 87-186, 1990 WL 113874, at 3 (D.D.C. July 26, 1990).
In this case, the government initially moved to seal the affidavit advancing the reasons it then had for doing so. Much has happened since then. It is quite clear from a comparison of the affidavit and the motion that Berman now knows some of what was in the affidavit. To secure the best current information upon which to predicate my ultimate conclusions and to permit the government a chance to makes its best case, I will order the government to file a supplemental Motion To Seal, supported by an affidavit explaining why the portions of the affidavit it refuses to disclose must still remain secret. Attached to that motion must be a copy of the affidavit, redacted to delete those portions of the affidavit which it insists must still remain secret. That redacted affidavit will be given immediately to Berman.
It is therefore ORDERED that by August 7, 2000, the United States shall file a supplemental Motion to Seal supported by an affidavit explaining why the portions of the affidavit it refuses to disclose must still remain secret. Attached to that motion must be a copy of the affidavit, redacted to delete those portions of the affidavit which it insists must still remain secret.
SO ORDERED.